inventions made prior to such alteration, or to appropriate that which has, in the mean time, gone into public use."
The principle here announced has been followed by the Circuit Court of Appeals of this Circuit in Hestonville, M. & F. Pass. Ry. Co. v. McDuffee, 185 F. 798, 802.
This leads us to the conclusion that the claims of the patent in suit must be strictly construed and read in the light of the disclosure of the invention as contained in the descriptive portion of the patent; and that we cannot conclude that just because an alleged infringing device comes literally within the terms of a patent-claim, there is infringement. General Electric Co. v. Allis-Chalmers Co., 3 Cir., 178 F. 273, 276; Standard Tobacco Stemmer Co. v. Tobacco Stemming Machine Co., D.C., 237 F. 822, 827, affirmed 3 Cir., 247 F. 112; Westinghouse v. Boyden Power-Brake Co., 170 U.S. 537, 568, 18 S. Ct. 707, 42 L. Ed. 1136; Elevator Supplies Co., Inc., v. Graham & Norton Co., 3 Cir., 44 F.2d 354, 355, 357.
As we read the patent-drawings and specifications of the patent in suit, it appears to be perfectly plain the invention rests in the means for coupling any of the well-known tractors, such as the "Fordson," the "Cletrace," and the Holt or "Caterpillar" with an ordinary road-working machine, and thus supplying the motive power to operate the road machine, and still have the tractor to use for other purposes when it is not utilized for propelling a road-machine. There is no such provision for the use of the power-unit of the defendant's structure in that way. It is first and last a road-working machine, with no provisions whatever for removing the power-unit and utilizing it as a tractor.
The only conclusion we can reach from reading the drawings and specifications of the Winsor patent, is that one must use a standard commercial tractor in such a way that it may not only be readily attached to a road-working machine, but also as readily detached therefrom and restored to its original uses. The defendant's device has no such provision. True, it has a motor-equipment, but that is built permanently into the road-machine. There is no contention that it can readily be attached to the machine and as readily detached therefrom, and then utilized as a tractor.
In a similar situation involving a patent covering a special frame structure for attaching existing types of tractors to industrial trucks, and also a patent for attaching such a tractor to harvesting machines, the Circuit Court of Appeals of the Seventh Circuit, in Myers v. Austin-Western Road Machinery Co., 45 F.2d 751, held those patents were not infringed by a road-grading machine which used a tractor's motor-equipment permanently built into the grader, because there was no provision for readily attaching the tractor equipment to the grader, and also for the detachment of the same and restoring the tractor to its original uses.
That essential element of the claims of the plaintiff's patent is totally lacking in defendant's structure.
This view makes it unnecessary to pass on the validity of the plaintiff's patent, except possibly we should say that no novelty can be claimed in the use of a motor to operate a road-machine. The machine shown and described in Oswald Patent No. 1,431,594, was in public use and sold more than two years prior to the filing of the application. Appropriate findings of fact and conclusions of law in accordance with this opinion are filed herewith. A decree for dismissal of plaintiff's bill may be submitted.
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